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CTRONI FILED
024M
Daniel Da: COURT - MAHONING
IN THE COURT OF COMMON PLEAS
MAHONING COUNTY, OHIO
LANDMARK INFRASTRUCTURE CASE NO. 2024 CV
OPERATING COMPANY LLC
JUDGE
Plaintiff,
PLAINTIFF’S MOTION FOR
Vv. TEMPORARY RESTRAINING ORDER
AND INJUNCTIVE RELIEF
SIMCHA VASHULEM, LLC
Defendant.
Now comes Plaintiff, Landmark Infrastructure Operating Company LLC (“Landmark”),
by and through counsel, and respectfully moves pursuant to R.C. § 2727.02, and Civ.R. 65 for
temporary, preliminary, and permanent injunctive relief to compel specific performance and
require Defendant Simcha Vashulem, LLC (“Defendant”) to promptly repair all applicable defects
that are the subject of the property code violation notices and condemnation order issued by the
City of Youngstown upon Defendant’s property located at 291 Park Ave. (PPN 53-005-0-288.00-
0) and Park Ave. Lot No. 4877 (PPN 53-005-0-289.00-0), Youngstown, Ohio 44504 (“Property”)
and otherwise comply with the contract between Landmark and Defendant. Injunctive relief is
necessary and appropriate herein as failure to grant such relief will result in irreparable harm to
Landmark through the loss of its valuable property rights, relationships with its tenants, and the
use of the Property for the transmission of cellular telephone communications throughout the area.
In the absence of a restraining order and injunctive relief, the Property will not only continue to
deteriorate, Landmark’s rights (and its tenants equipment) will suffer further impairment, and the
building itself, upon the Property which is the subject of this action, will either collapse due to
Defendant’s lack of repair and maintenance or be demolished by order of the City of Youngstown
because of said lack of repair and maintenance.
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Landmark has filed herewith its Verified Complaint for Temporary Restraining Order,
Injunctive Relief, and Breach of Contract and supports this motion with the Memorandum attached
hereto and incorporated herein by reference.
Respectfully submitted:
/s/ Amelia J. Leonard
Amelia J. Leonard (0088875)
SEELEY, SAVIDGE, EBERT & GOURASH Co., L.P.A.
26600 Detroit Road, Suite 300
Westlake, Ohio 44145
(216) 566-8200 | (216) 566-0213 (fax)
aleonard@sseg-law.com
Counsel for Plaintiff;
Landmark Infrastructure Operating Company LLC
MEMORANDUM IN SUPPORT
I. BACKGROUND
A. Landmark’s Property Interests.
On September 8, 2017, Landmark and Simcha Vashulem LLC (“Simcha”) entered into an
Easement and Assignment of Lease Agreement! (the “Easement and Lease Agreement” or
alternatively, “Contract”) wherein Simcha granted Landmark certain property rights in property
owned by Simcha at 291 Park Ave., Youngstown, Ohio (the “Property”). These rights included an
exclusive easement to portions of the Property for telecommunications purposes (the “Telecom
Easement”), a non-exclusive right to access certain portions of the Property for “ingress, egress,
maintenance and utility service for and to the Telecom Easement” (the “Access Easement”), and
1 A true and accurate copy of the original Easement and Lease Agreement along with a copy of the Affidavit on
Facts Related to Title filed with the Office of the Mahoning County Recorder on September 11, 2023 is attached as
Exhibit 1 hereto. A newly executed Easement and Lease Agreement, with the effective date of September 8, 2017,
was recorded with the Office of the Mahoning County Recorder on September 15, 2023 and is attached hereto as
Exhibit 2.
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an assignment (“Assignment”) of the existing telecommunication leases (“Leases”) which were
associated with the Telecom Easement and entered into between Simcha and its predecessors on
January 21, 1998, February 16, 2006, and February 27, 2006. Together, the Telecom Easement,
Access Easement, and Assignment provided Landmark with certain contractual rights and
obligations relative to the Property.
Although the Contract assigned the telecommunication leases to Landmark, Simcha was
still required to “maintain and repair the Property and access thereto, in good and tenantable
condition” throughout the duration of the Leases and to “pay when due all real property taxes for
the Property.”? If Simcha failed to meet its obligations, particularly with respect to the real property
taxes, Landmark as assignee of the Leases, could “pay such owed amounts and deduct them from
Rent amounts due” to Simcha.’ In the event that Simcha defaulted under the terms of the Contract,
upon receiving written notice from Landmark of such default, Simcha would be required to cure
the default.
B. The Tax Foreclosure Matter.
In late August 2023, Landmark learned that its Easement and Lease Agreement had not
been recorded. It immediately contacted Simcha about this omission and to get the document
recorded but was unable to reach Simcha or locate the original Contract. Within a few days,
Landmark also learned of the existence of a pending tax foreclosure action filed in this Court on
April 3, 2023 by Daniel R. Yemma, as Treasurer of Mahoning County, Ohio (“Treasurer”), and
assigned Case No. 2023CV00589 (“Tax Foreclosure”). Landmark immediately filed the Affidavit
on Facts Related to Title (Exhibit 1) and moved to intervene in the Tax Foreclosure matter, which
was granted by the Court on September 15, 2023.
? See Ex. 2 at Exhibit D.
5 See Rooftop Lease with Option, Exhibit D to Easement and Lease Agreement (Ex. 2).
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In connection with its efforts to intervene in this matter, Landmark also discovered that the
Property had been condemned by the City of Youngstown (“City”) and was in danger of being
demolished. Landmark contacted the City Law Department and obtained documents concerning
the multiple code violations that had been cited against the Property over a period of several years.
Landmark notified Simcha of its multiple breaches of the Contract by not only failing to pay the
taxes when due but also failing to maintain the Property in habitable condition. Initially, Landmark
was advised by Simcha’s counsel (in the Tax Foreclosure matter) that Simcha planned on paying
the taxes on or before September 15, 2023, the date a hearing was scheduled on the Treasurer’s
dispositive motions.
In the meantime, Landmark again contacted the City to see if it could redeem the Property
(by paying the delinquent taxes and related fees and costs) in the event Simcha did not. On
September 14, 2023, the City advised Landmark that it would not allow the Property to be
redeemed without the property code violations also being corrected. The City also advised
Landmark that Simcha had also contacted the City about redeeming the Property and would be
moving the Court to brief the redemption issue.
On September 15, 2023, undersigned counsel appeared at Court on Landmark’s behalf. As
expected, Simcha requested to brief the tax redemption issue and Landmark advised the Court that
it also wanted to brief the redemption issue since it could pay the taxes but could not demonstrate
compliance with building codes due to its non-possessory interests in the Property. With all present
parties agreeing to brief the redemption issue, a briefing schedule was set and a hearing and ruling
on the Treasurer’s dispositive motions was postponed.
Between September 15 and October 27, 2023, Landmark tried to work with Simcha to
jointly submit a brief regarding redemption and to resolve the issue and avoid a foreclosure,
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without success. On October 12, 2023, Landmark issued a formal Notice of Default,’ along with a
demand to immediately cure such defaults by paying the past-due taxes and repairing the Property
to remove the code violations. In the interim, Landmark needed to remove certain decommissioned
equipment from the Property. However, due to the fence erected by and condemnation notices
posted by the City, Landmark was unable to use its easement rights to accomplish this, but rather
had to contact the City and arrange with it to obtain access to the Property along with approvals to
perform the necessary operation resulting in delays and causing harm to the contractual
relationship between Landmark and its telecommunications customers.
On October 30, 2023, with still no word from Simcha regarding its intentions to redeem
the Property, brief the issue, or otherwise cure its multiple defaults of the Agreement, Landmark
filed its own Motion to Redeem? requesting that it be permitted to redeem the delinquent taxes to
prevent a decree of foreclosure and impairment of its property rights, but be excused from
complying with the requirement in R.C. 5721.25 that it demonstrate compliance with all applicable
building, health, and safety codes. After several delays and requested extension, Simcha filed its
own Motion to Redeem on December 4, 2023.° In it, Simcha argued simply that the Court should
conduct a hearing to determine the amount necessary to redeem the Property and that once the
amount was “determined” the matter be stayed for 90 days once Simcha tendered said amount to
allow Simcha to “assess whether or not the property is in compliance with [the City property code]
and if not remedy the same thereby redeeming the property.”
Unsurprisingly, the Treasurer opposed both motions and the Court agreed with the
Treasurer and denied both motions. Thereafter, the Treasurer filed an amended dispositive motion,
4 A copy of both the Notice of Default and proof
of delivery are attached hereto at Exhibit 3.
5 A copy of Landmark’s Motion to Redeem (without exhibits) is attached hereto as Exhibit 4.
© Simcha’s Motion to Redeem is attached hereto as Exhibit 5.
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to which Landmark — but not Simcha — responded to oppose. Again, unsurprisingly, with the
Property owner not even opposing summary judgment against it, the Court ruled in the Treasurer’s
favor, foreclosing the Treasurer’s tax lien, and ordered that the Property be sold, subject only to
all property interests recorded prior to the date the Treasurer’s Lis Pendens was filed — which
notably did not include Landmark’s interests, which had not been recorded in 2017 when such
interest was first conveyed.
Because the decree of foreclosure makes no provision for Landmark’s interest due to
Simcha’s failure to record the Agreement, upon a sale of the Property, Landmark will be stripped
of its valuable property interests. Moreover, despite having requested a period of “90 days”
which to assess the Property’s condition, during the 150 days since Simcha requested that
extension, Simcha apparently has done nothing to rectify the numerous property code violations
which prevented Landmark from redeeming the Property to protect its own interests. Thus, the
Property still stands to be demolished and/or sold with nothing that Landmark can do on its own
to prevent that.
Accordingly, Plaintiff Landmark respectfully requests that this Court issue a Temporary
Restraining Order to require Defendant Simcha immediately (1) make all necessary repairs to
correct the numerous property code violations to prevent the building thereon from being
demolished; and (2) pay all delinquent property taxes so that the Property can be redeemed prior
to a sale of foreclosure.
Il. LAW AND ARGUMENT
This is predominantly a breach of contract action in which Landmark acquired from
Simcha an easement on Property for a period of 99 years, subject to conditions not applicable
herein. Landmark has fully performed all of its obligations under the Agreement, but Simcha has
not. Specifically, Simcha has failed to maintain the Property in a “good and tenantable condition”
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and has failed to pay all property taxes when due, as required under the Leases assigned to
Landmark. Because of Simcha’s defaults, Landmark has already suffered damages and is in
imminent danger of losing its property rights, for which injunctive relief is appropriate.
While a breach of a contract may give rise to monetary damages, an action for injunctive
relief and requiring that the contract be specifically performed into the future is proper. Sunday
Creek Coal Col. v. Big Bailey Coal Co., 26 Ohio N.P.(N.S.) 117, 1922 WL 1790 (Franklin C.P.
1922). This is particularly true when, as in this matter, fundamental property rights are at issue
and cannot be “adequately guarded, protected, and enforced” except in an action at equity. /d. at
132; see also In re Morris, 260 F.3d 654, 667 (6th Cir.2001) (“Ohio follows the traditional rule
of the common law that regards contracts for the conveyance of real property as falling within
the jurisdiction of courts of equity because of the inherent inadequacy of any legal remedy.”).
As the Fourth District recognized in Gleason v. Gleason,
“[{W]here land is the subject matter of the agreement, the jurisdiction of equity to
grant specific performance does not depend upon the existence of special facts
showing the inadequacy of a legal remedy in the particular case.”
64 Ohio App.3d 667, 672, 582 N.E.2d 657, 661 (4th Dist.1991) quoting 71 American
Jurisprudence 2d (1973) 144, Specific Performance, Section 112.
When seeking equitable relief regarding an interest in land, a party may obtain injunctive
relief to compel specific performance. See Nelson v. Suburban Nursing & Mobile Homes, Inc.,
2nd Dist. Montgomery No. 13773, 1993 WL 334373. Rule 65 allows a court to enter a temporary
restraining order, either with or without written or oral notice, if it “clearly appears from specific
facts shown by affidavit or the verified complaint that immediate and irreparable injury, loss or
damage will result before the adverse party. . . can be heard in opposition.” Civ.R. 65(A)(1).
Upon certification by counsel for the moving party that either efforts have been made to notify
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the opposing party or should not be required, the Court may enter a temporary restraining order
for a period of up to fourteen (14) days, during which a hearing on a request for preliminary
injunction may be held. Civ.R. 65(A).
When considering whether to issue a preliminary injunction under Ohio law, this Court
considers and balances the following four factors:
1 whether Plaintiffs have a substantial likelihood or probability of success on the
merits;
whether Plaintiffs will suffer irreparable injury if the relief is not granted;
whether the preliminary injunction would unjustifiably harm third parties;
whether the public interest would be served by issuing the preliminary
injunction.
Aids Taskforce of Greater Cleveland v. Ohio Dep't of Health, 8th Dist. No. 105971, 2018-Ohio-
2727, 422 citing Kyrkos v. Superior Beverage Group, Ltd., 8th Dist. Cuyahoga No. 99444, 2013-
Ohio-4597, 413. No single factor is dispositive but rather must be weighed with the “flexibility
which traditionally has characterized the law of equity’.” Cleveland vy. Cleveland Elec. Illum. Co.,
115 Ohio App.3d 1, 14, 684 N.E.2d 343 (8th Dist.1996) quoting Friendship Materials, Inc. v.
Michigan Brick, Inc., 679 F.2d 100, 105 (C.A.6, 1982).
In this case, each of the factors weighs heavily in Landmark’s favor and injunctive relief
is appropriate and should be granted.
A. Landmark has a substantial likelihood of success on the merits.
With the summary judgment having already been entered in the Tax Foreclosure matter in
which Simcha was an active participant, Simcha already has been conclusively found to have failed
to pay property taxes when due and failed to maintain the Property. As the Agreement makes clear,
both of those acts were positive covenants Simcha undertook under the Leases which Simcha
reserved to itself to perform when such Leases were assigned to Simcha. Accordingly, Landmark
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has a substantial likelihood of prevailing on its breach of contract claims that Simcha has breached
the Agreement by not paying property taxes when due and failing to maintain the Property to such
an extent that the Property has been condemned and is subject to demolition by the City. This
factor weighs in Landmark’s favor and supports injunctive relief.
B. Landmark will suffer irreparable injury if the relief is not granted.
Even though this matter is, by way of nature, a breach of contract action, injunctive relief
is an additional appropriate remedy. It has long been the law in Ohio that a breach of a contract
involving an interest in real property may entitle the nonbreaching party to specifically enforce the
terms of such contract even though damages may be awarded for past breaches. Gleason v.
Gleason, 64 Ohio App.3d 667, 672-73, 582 N.E.2d 657 (4th Dist. 1991); see also Ayres v. Cook,
140 Ohio St. 281, 43 N.E.2d 287, 291 (Ohio 1942) (“{A]n action at law does not ordinarily afford
an adequate remedy for refusal to convey real estate in accordance with a valid agreement.”),
overruled on other grounds by Sherman y. Johnson, 159 Ohio St. 209, 112 N.E.2d 326, 332 (Ohio
1953). In this case, while Landmark has already suffered harm for which some damages may be
quantifiable, losing its interest in the Property would be irreparable. This factor also supports
injunctive relief being granted in Landmark’s favor.
Cc. The preliminary injunction would not unjustifiably harm third parties.
While the Agreement herein is directly between Landmark and Simcha, others have a real
and definite interest in the existence of such contract. Specifically, Landmark presently has tenants
on the Property who stand to lose their telecommunications equipment and ability to transmit
cellular signals in the event that the Property is demolished or collapses on its own due to Simcha’s
lack of maintenance and repair. Moreover, others, who have no present contract with either of the
parties herein, such as the cellular signal customers of Landmark’s tenants, will likewise suffer
harm if the telecommunications equipment is removed or damaged as a result of Simcha’s lack of
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2024 CV 00958
maintenance. Granting injunctive relief by requiring Simcha to perform the contract by paying the
delinquent taxes and repairing the building, will prevent unjustifiable harm to third parties. Thus,
injunctive relief in Landmark’s favor is appropriate.
D. The public interest would be served by issuing the preliminary injunction.
As set forth above, the Property is home to various telecommunications arrays for several
cellular telephone service providers. If the Property is not brought up to code, the equipment risks
being damaged either through the demolition of the building by the City or the unaided collapse
of the building itself through Simcha’s neglect in not providing maintenance to the Property.
Requiring Simcha to repair the building and bring the Property up to code with serve a vital public
interest in maintaining cellular telephone services across the region.
In addition, the building on the Property was built in 1928 and is a well-loved building in
the community. Requiring Simcha to repair and restore this former beauty not only would prevent
the loss of cellular communication services but also benefit the public interest by removing a
blighted building and restoring part of the City’s history. Thus, granting injunctive relief in
Landmark’s favor would not only benefit Landmark, but the surrounding population and the City
itself.
Til. CONCLUSION.
WHEREFORE, for all of the foregoing reasons, Plaintiff, Landmark Infrastructure
Operating Company LLC, respectfully requests that it be granted a temporary restraining order
and preliminary and permanent injunctive relief by requiring Defendant Simcha Vashulem, LLC,
to specifically perform its obligations under the Agreement with Landmark by making all
necessary repairs to the Property to correct all code violations and paying all delinquent taxes to
prevent further and irreparable harm to Plaintiff and others in this community.
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2024 CV 00958
Respectfully submitted:
/s/ Amelia J. Leonard
Amelia J. Leonard (0088875)
SEELEY, SAVIDGE, EBERT & GOURASH Co., L.P.A.
26600 Detroit Road, Suite 300
Westlake, Ohio 44145
(216) 566-8200 | (216) 566-0213 (fax)
aleonard@sseg-law.com
Counsel for Plaintiff;
Landmark Infrastructure Operating Company LLC
CERTIFICATE OF SERVICE
I hereby certify that on May 3, 2024, this document was eFiled via the Court's eFile system:
A copy is also being sent via FedEx Overnight to the following:
Simcha Vashulem, LLC
26 S. 10th St.
Brooklyn, NY 11249
Courtesy copies are also being sent via email to:
James E. Lanzo Simcha Vashulem, LLC
4126 Youngstown Poland Rd c/o Jacob Wieder
Youngstown, OH 44514 office @ymwmanagement.com
lanzolawoffice@gmail.con
Counsel for Simcha Vashulem, LLC in
Mahoning Co. C.P. Case No. 2023CVO00589
/s/ Amelia J. Leonard
Counsel for Plaintiff;
Landmark Infrastructure Operating Company LLC
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2024 CV 00958
SL UTSE MEN | PRUMER EOL a
Tsetnos
O2S000 17174
mise for Record in
HAHOHINE COUNTY, OHIO
‘HH PALERMO, OER
12355 PH
1p 76.00
OF ob 6559 Pa, iia
AFFIDAVIT ON FACTS RELATING TO TITLE
(O.R-C. § $301,252)
STATE OF CALIFORNIA
2 5S.
COUNTY OF LOS ANGELES }
The undersigned, Daniel Parsons (herein called “Affiant")}, being frst duly sworn ander oath,
comes forth ta slite the following as truthfully as he verily believes
1 Affiant states that he is the COQ and an authorized representative for Landmark
Infrastructure Operating © ompany LLC, a Delaware limited liability company duly registered in the State
of Ohio as a foreign limited liability company (herein called Grantee"),
2. Affiant is in possession of a copy of a certain Easement and Assignment of Lease
Agreement entered inio on September 8, 2617, between Simcha Vashulem LLC, an Ohio limited lability
company (“Grantor”) and Grantee with respect to the grant to Grantee of an exclusive easement for
telecommunications purposes (“Telecom Easement”), a non-exclusive access easement if, to, under, and
over the property containing the Telecom Casement (“Access Easement’), and an assignment of
telocommunications lease(s) or license(s) pertaining to the Telecom Easement pursuant to one or more
lease agreements between Grantor, as successor in interest to TLP Properties LLC and/or Vinoy Sood
(“Assignment"), as more fully set forth in the Easement & Assignment of Lease attached hereto as
Exhibit {
3.3 Affiant further states that Grantor is presently in possession of the Premises to which this
Easement and Assignment of Lease Agreement pertains, consisting of real property located at 291 Park
Ave., Youngstown, Mahoning County, Ohio identified on-the records therein as PPN $3-005-0-288.00 as
of the date hereof and that Grantee's easement rights are current and have not lapsed
A. Affiant further states that this Affidavit on Facts Relating to Tide is being filed to
memorialize ihe valid and presently existing but unrecorded Easement and Assignment of Lease
Agreement.
5 Affiant further states that the attached Easement and. Assignment of Lease Agreement is a
true and accurate copy of the original docurnent of same name which was, but is no longer, in possession
of Landmark Infrastructure Operating Company, LLC and could not be located despite diligent efforts to
locate same,
“Affiant further sayeth naught.”
Date: _ Alea
mi 28 we Ve
re ii
Daniel Parsons
BEFORE ME, a Notary Public in and for said County and State, personally appeared Daniel
Parsons, who acknowledged that he did sign the foregoing instrument and thal the same is his free act and
deed,
IN. TESTIMONY WHEREOE, paive hereunto set my hand and official seal this _.. day of
September 2023. wi
Pete dee Octane d-
cnn neo se
Notary Public
This astrument Prepared By:
Ametia J. Leonard (0088875)
SEELEY SAVIDGE EBERT & GOURASH
26600 Detroit Rd., Suite 300
Westlake, OH 44145
216-566-8;
“Pinaceae ae
EXHIBIT
2024 CV 00958 1
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate
is attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Los Angeles
Subscribed and sworn to (or affirmed) before me on this 7th
day of September , 2023 , by Daniel R. Parsons Sh
proved to me on the basis of satisfactory evidence to be the
person(s) who appeared before me.
(Seal) Signature Ay L one
2024 CV 00958
EASEMENT AND ASSIGNMENT OF LEASE AGREEMENT
This Easement and Assignment of Lease Agreement (this “Agreement™) dated September 8,
2017 (the “Effective Date”) is by and between SIMCHA VASHULEM LLC, AN OHIO
LIMITED LIABILITY COMPANY (“Grantor”), and LANDMARK INFRASTRUCTURE
OPERATING COMPANY LLC, a Delaware limited liability company (“Grantee”); and
WHEREAS Grantor owns certain real property located at 291 Park Ave, in the City of
Youngstown, County of Mahoning, State of Ohio (“Property”); and more particularly described
in ExhibitA attached hereto; and
WHEREAS Grantor intends to grant to Grantee an exclusive easement (the “Teleco
Easement’) in, to, under and over a certain portion of the Property described in Exhibit B attached
hereto (the “Telecom Easement Area”) for telecornmunications purposes, and a non-exclusive
easement (the “Access Easement”) in, to, under and over certain portions of the Property described
in Exhibi attached hereto (the “Access Easement Area”) for ingress, egress, maintenance and
utility service for and to the Telecom Easement (the Telecom Easement and the Access Easement
may be collectively referred to herein as the “Easement”): and
WHEREAS Grantor intends to sell, assign, set over, convey and transfer the existing
telecormmunications lease(s) or license(s) (“Lease(s}") more particularly described in ExhibitmED
to Grantee: and
WHEREAS Grantor intends to allow Grantee to use the Easement in order that Grantee may
tease space to Tenants in the telecommunications business; and
NOW THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follaws:
1 GRANT OF EASEMENT, Grantor hereby grants to Grantee an exclusive easement over the
Telecom Easement Area for the purpose of leasing space on the Property to telecommunications
tenant(s) and uses associated with the exercise rights of telecommmunications tenants under such
leases.
2. TERM, Commencing on September 8, 2017 (the “Commencement Date”), the Term of
this Agreement shail be 99 years. Grantee shall be solely responsible for the payment of any taxes,
fees or similar closing costs now or hereafter arising relative to the recording of this Agreement,
or any documents associated herewith.
3. TERMINATION, Grantor may not terminate this Agreement; provided however, that in the
event that Grantee voluntarily ceases to use the Easement for a continuous period of five (5) years,
the Easement shall be deemed abandoned and this Agreement shall automatically terminate.
2024 CV 00958
4. ASSIGNMENT OF LEASE(S). As part of the consideration provided for this Agreement,
Grantor hereby assigns and conveys all of its right, title and interest in and to the Lease(s), more
particularly described in Exhibit D, Subject to the terms of the Lease(s), Grantor shall retain and
continue fo faithfully perform and discharge any and all of Grantor’s obligations as lessor under
the Lease(s) and Grantee assumes no obligations thereunder, except where Grantor is unable to
perform and discharge any or all of Grantor's obligations due to force majeure, or an action or
inaction of Grantee, or Grantee's agents, employees, contractors, licensees, servants, invitees or
visitors
5.> NON-EXCLUSIVE ACCESS EASEMENT, As part of the consideration for this Agreement,
Grantor hereby grants to Grantee the Access Easement in, to, under and across certain areas of the
Property, and at certain times, as selected by Grantor in Grantor’s sole discretion, solely to the
extent necessaty to allow ingress and egress, operation, maintenance of and utility service to the
Telecom Easement Area, Grantor may re-route the Access Easement at any time, at Grantor's sole
discretion. Notwithstanding anything to the contrary set forth herein, the Access Easement herein
provided shall at all times be continuous, uninterrupted and adequate for Grantee's purposes
contemplated herein.
6. REPRESENTATIONS AND COVENANTS OF GRANTOR. Grantor represents and
warrants to Grantee, as of the date hereof, that:
a. This person(s) signing this Agreement and any other documents on behalf of Grantor is
duly authorized to do so and by execution hereof, it is the intent of Grantor to create a legal, valid
and binding obligation, enforceable against Grantorin accordance with their terms.
b. The execution, delivery and performance by Grantor of this Agreement does not and will
not violate or conflict with any provision of Grantor's organizational documents (if Grantor is an
organization) or of any agreement to which Grantor is a party including, without limitation,
permits, mortgages and deeds of trust, or by which Grantor or the Property is bound and to the best
of Grantor's knowledge, will not violate or conflict with any law, rule, regulation, judgment, order
or decree to which Grantor is subject.
«. There is no pending or threatened action, judgment, order decree or proceeding (including
any bankruptcy, insolvency. eminent domain, zoning or other land use regulation actions) that, if
determined against Grantor, would adversely affect Grantor's ability to grant the Easement or such
other documents or to perform its obligations hereunder or thereunder, or limit Grantee’s ability
to use the Easement as contemplated herein, Grantor has received no notice from anv
governmental or quasi-governmental authority either that the Property or the use thereof violates
any statutes, ordinances, orders or regulations affecting any portion of the Property.
d. Grantor owns one hundred percent (100%) of the fee title to the Property and the lessor’s
interest in and to the Lease(s).
e. Grantor has not previously deeded, granted, assigned, mortgaged, pledged. hypothecated,
alienated or otherwise transferred any of its aght, ville and interest in and (o the Lease(s), or any
portion of the Property the Easement occupies, except as expressly disclosed to Grantee in writing,
2024 CV 00958
or as may be of reeard. Except for the Lease(s), Grantor has not executed or otherwise entered
into any leases, lenancies, license or concession agreements, occupancy agreements or other
agreements with respect to rights that would prevent Grantee’s, or Grantee's tenants, possession
or vecupaney of exy portion of the Easement or use of the Property pursuant to this Agreement ar
the Lease(s}.
f Grantor shall not allow or permit a Grantor's breach or default wo occur under the Leases
and Grantor shall comply with all appt able laws which may affect the Property.
2 Intentionally Omitted.
h Grantor shall nol, nor shal) Grantor permit its lessees, licensees, employe invitees or
agents to unreasonably use any portion of the Property, or the Easement ina way whi hy interferes
with the operations of tenants under the Lease(s), 0 y other of Grantee’s future lessees or
licensees, or to interfere with the Access Basement, Sach interference shall be deemed a matenal
breach by Grantor,
7. RELOCATIO Subject to the terms of the Leases, Grantee agrees, at no co: to Granted, to
relocate its equipment to a similar locati vadequate for Grantee's purposes contemplated herein,
within the Property, for the purpose () reducing or eliminating interference, or (ii) permitting
Grantar to perform maintenance, repair, construction, Property enhancements, or similar work on
the Prop ¥
8. SUCCESSORS AND ASSIGNS, This Agreement shal! he binding upon and inure to the
benetit of the parties hereto and the successors and assigns of the parties to this Agreement, This
Agreement shall nin with the land upon which the Easement is located, and Grantor shall, tn any
and al) deeds or other documents related to the sale, conveyance, sizninent, mortgage. pledge,
or other encumbrance or transfer of the Property, expressly provide that the Property is subject ta
all nghts, liabihties and obligations under this Agreement (including without Umitstion, with
respect to the Easement). Grantor hereby expressly acknowledges and agrees that Grantee may
from lime te time sell, convey, assign, mortgage. pledge, encumber, hypothecate, securitize or
otherwise transi er some oral! of Grantee’s right. nde and interest in and to this Agreement, the
Fasement, the Telecom Easement Area and/or the Access Easement Arce without notice to or
consent of Grantor.
a. ENVIRONMENTAL REPRESENTATIONS.
&. Grantor Environmental Representation. Grantor represents that it has no knowledge of
any substance, chemical or waste (collectiv ly “Hazardous Substance”) on the Property that is
identified a8 hazardous, toxic or dangerous im any applicable federal, state or local Jaw or
regulation. Grantor shall not introduce of use (or permit the use of} any Hazardous Substance on
the Property in violation of any applicable federal, state or local environmental laws. Grantor shall
be responsible for (and shell promptly conduct any investigation and remediation as regaired by
any applicable environmental laws) all spills or other reles s of any Hazardous Substance not
eaused solely by Grantee, that have occurred or which may occur on the Property.
2024 CV 00958
bh, Grantee Environmental Representations. Grantee shall ret introduce or use any
Hazardous Substance on the Property or the Basement in violation of any applicable federal, state
or local environmental laws. Notwithstanding the foregoing, Grante Ht not be respon: e for
any Hazardous Substances arising or present on or before the tive Date. Liability of Grantee
for any claims with respect to any Hazardous Substances at the Property or the B sement shall
include contamination which is shown by. clear evidence to have been caused by a release wf a
Hazardous Substance by Grantee alter the Effective Date
&, Mutual Indenmification. Bach party agrees to defend, indemnify, and hold harmless the
other from and against any and all administrative and judicial sections and niin claims, causes
of action, demands and liabdity including, bot not limited to damages, costs, expenses.
essments, penalties, fin cleanup, remedial, removal or restoration work required by any
governmental authority, losses, judgments and reasonable attorneys’ fees that the indemmified
party may suffer or incur duc to the « tence or discovery of any Hazardous Substance on the
Property caused by the other party. This mdemnification shall also apply to the migration of any
Hazardous Substance to other properties, and the release of any Hazardous Substance into the
environment that relate to © ise from the indemmiter’s setivities on the Prope ee Grantor agrees
to delend, indemni protect and hold Grantee harmless from claims resulting from actions on the
ty nol caused by Grantee prior to, and during the Term of, this Agreement. This
indemnification shall survive the termination or expiration of this Agr ent
#
10, NOTIC All notices, requests, demands and other communica ong hereunder shall be
delivered by Certified Mail Return Receipt Requested, and/or a nationally recognized Crvernight
courier, Notice shall be deemed accepted upon proof of delivery, Notices shall be delivered
As to Grantor’ Sab St
Brook’ NY 1249
Asto Grantee: c/o Landmark Dividend LL
P.O. Box 3429
2441 Rosecrans Ave,, Suite 2100
E) Segundo, CA 90245
Alta: Legal Dept
it DEFAULT. lt shall be an “Event of Default if either Grantor or Grantee fails to observe
or pertonm any of the terms, conditions or its reapective obligations set forth in this Agreement!
Upon receiving written notice of such a default or breach of this Agreement, the defaulting party
shall have sixty (60) days to cure such default. Notwithstanding anything herein ta the contrary,
if the required eure of the noticed default cannot reasonably be completed by either party within
such 60-day period, such party's failure to perform shall not constitue an Event of Default so long
ag such party undertakes to cure the failure promptly and diligently and continuously pursues the
cure thereof to completion. In the event that the defaulting party fa to cure such default within
the cure period, the non-defaulting party shall be entitled to exercise any rights permitted by
applicable law,
2024 CV 00958
12 AGREEMENT FULLY PERFORMED. Notwithstanding anything herein to the contrary,
this Agreement is deemed to be fully performed by Grantee as of the Commencement Date. Inno
event shall this Agreement be deemed an executory contract for purposes of the United States
Bankruptcy Code, as amended (the “Code”), and this Agreement may not be rejected pursuant to
Section 365 of the Code.
13. GOVERNING LAW: CERTAIN WAIVERS.
(a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE JN WHICH THE PROPERTY IS
LOCATED, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF,
(b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH
PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING TO
ENFORCE OR INTERPRET THIS AGREEMENT.
(c) EACH PARTY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE
APPLICABLE UNITED STATES DISTRICT COURT FOR THE DISTRICT THE PROPERTY
1S LOCATED IN, AND EACH PARTY WAIVES ANY OBJECTION WHICH IT MAY HAVE
TO THE LAYING OF VENUE IN SUCH COURT, WHETHER ON THE BASIS OF
INCONVENIENT FORUM OR OTHERWISE.
2024 CV 00958
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have caused this
Agreement to be duly executed as of the date first written above.
GRANTOR:
SIMCHA VASHULEM LLC, an Ohio limited liability company
Name: JosephGottchrer
Title: Manage
Date: 3) 24/ 20rd s
STATE OF cht
Wecng f ne i)
ss.
COUNTY OF
SeateSmee
We B9 20177, before
a Notary Public in and for said County and
me,
singe
State, personally appeared _ fb SH #3 ITE AE . who proved to
me on the basis of satisfactory evidence toto be the person(s) ‘whose name(s) ‘is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of that the
foregoing paragraph is true and correct.
clSo
WITNESS my hand and o! ficial S
My Commission Expi
By i
SOLON
seouary Pe
ON ITZKOMITS
cuit OuTA7O54a)
ermsion ‘ExoHes
a itn itnennscneroniimmn,
af New fos
JULY 30, 2015
[SEAL]
i“
2024 CV 00958
IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have caused this
Agreement to be duly executed as of the date first written above
GRANTEE:
LANDMARK INFRASTRUCTURE OPERATING COMPANY LLC, a Delaware limited
liability company
“
By ee e
Nosy” USE
Ce
Title uthorize
4]
Date oh
ieee ineinatitecsicin i netic ome sitions tei itr riinissiinon
A notary public or aiher officer completing this certificate verifies only the identity of the individual who signed the \
« document to which this certificate is susched, and not the truthfulness, accuracy. or validity of that document, i
ini Sati i sith
State of California
County of Los Angeles
be oe,
On crime before The,
Kom att
Th. ea BX judlele BW (here insert name and title of officer),
personally appeared rai. , who
proved to me on the basis of satisfactory evidence to be the person(s) whose name (s) is/are
subscribed to the within instrument and acknowledged to me that he/she’they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument
T certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and official seal. KAMILAH EDWARDS %
Commission # 2132073 t=
Notary Public « California
Los Angeles County z
Signature ernie (Seal) ySonm, Expires Get
01 29, 2018Ue
2024 CV 00958
ITA
LEGAL DESCRIPTION OF THE PROPERTY
SITUATED IN THE CITY OF YOUNGSTOWN, COUNTY OF MAHONING, STATE OF OHIO:
PARENT PARCEL:
KNOWN AS BEING YOUNGSTOWN CITY LOT NUMBER 4877 ACCORDING TO THE LATEST
ENUMERATION OF LOTS IN SAID CITY.
TAX LD. NUM
Preview
CTRONI FILED 024M Daniel Da: COURT - MAHONING IN THE COURT OF COMMON PLEAS MAHONING COUNTY, OHIO LANDMARK INFRASTRUCTURE CASE NO. 2024 CV OPERATING COMPANY LLC JUDGE Plaintiff, PLAINTIFF’S MOTION FOR Vv. TEMPORARY RESTRAINING ORDER AND INJUNCTIVE RELIEF SIMCHA VASHULEM, LLC Defendant. Now comes Plaintiff, Landmark Infrastructure Operating Company LLC (“Landmark”), by and through counsel, and respectfully moves pursuant to R.C. § 2727.02, and Civ.R. 65 for temporary, preliminary, and permanent injunctive relief to compel specific performance and require Defendant Simcha Vashulem, LLC (“Defendant”) to promptly repair all applicable defects that are the subject of the property code violation notices and condemnation order issued by the City of Youngstown upon Defendant’s property located at 291 Park Ave. (PPN 53-005-0-288.00- 0) and Park Ave. Lot No. 4877 (PPN 53-005-0-289.00-0), Youngstown, Ohio 44504 (“Property”) and otherwise comply with the contract between Landmark and Defendant. Injunctive relief is necessary and appropriate herein as failure to grant such relief will result in irreparable harm to Landmark through the loss of its valuable property rights, relationships with its tenants, and the use of the Property for the transmission of cellular telephone communications throughout the area. In the absence of a restraining order and injunctive relief, the Property will not only continue to deteriorate, Landmark’s rights (and its tenants equipment) will suffer further impairment, and the building itself, upon the Property which is the subject of this action, will either collapse due to Defendant’s lack of repair and maintenance or be demolished by order of the City of Youngstown because of said lack of repair and maintenance. esses 2049508 fe TRO inetRa 2024 CV 00958 Landmark has filed herewith its Verified Complaint for Temporary Restraining Order, Injunctive Relief, and Breach of Contract and supports this motion with the Memorandum attached hereto and incorporated herein by reference. Respectfully submitted: /s/ Amelia J. Leonard Amelia J. Leonard (0088875) SEELEY, SAVIDGE, EBERT & GOURASH Co., L.P.A. 26600 Detroit Road, Suite 300 Westlake, Ohio 44145 (216) 566-8200 | (216) 566-0213 (fax) aleonard@sseg-law.com Counsel for Plaintiff; Landmark Infrastructure Operating Company LLC MEMORANDUM IN SUPPORT I. BACKGROUND A. Landmark’s Property Interests. On September 8, 2017, Landmark and Simcha Vashulem LLC (“Simcha”) entered into an Easement and Assignment of Lease Agreement! (the “Easement and Lease Agreement” or alternatively, “Contract”) wherein Simcha granted Landmark certain property rights in property owned by Simcha at 291 Park Ave., Youngstown, Ohio (the “Property”). These rights included an exclusive easement to portions of the Property for telecommunications purposes (the “Telecom Easement”), a non-exclusive right to access certain portions of the Property for “ingress, egress, maintenance and utility service for and to the Telecom Easement” (the “Access Easement”), and 1 A true and accurate copy of the original Easement and Lease Agreement along with a copy of the Affidavit on Facts Related to Title filed with the Office of the Mahoning County Recorder on September 11, 2023 is attached as Exhibit 1 hereto. A newly executed Easement and Lease Agreement, with the effective date of September 8, 2017, was recorded with the Office of the Mahoning County Recorder on September 15, 2023 and is attached hereto as Exhibit 2. esses 2049508 fe TRO inetRa 2024 CV 00958 an assignment (“Assignment”) of the existing telecommunication leases (“Leases”) which were associated with the Telecom Easement and entered into between Simcha and its predecessors on January 21, 1998, February 16, 2006, and February 27, 2006. Together, the Telecom Easement, Access Easement, and Assignment provided Landmark with certain contractual rights and obligations relative to the Property. Although the Contract assigned the telecommunication leases to Landmark, Simcha was still required to “maintain and repair the Property and access thereto, in good and tenantable condition” throughout the duration of the Leases and to “pay when due all real property taxes for the Property.”? If Simcha failed to meet its obligations, particularly with respect to the real property taxes, Landmark as assignee of the Leases, could “pay such owed amounts and deduct them from Rent amounts due” to Simcha.’ In the event that Simcha defaulted under the terms of the Contract, upon receiving written notice from Landmark of such default, Simcha would be required to cure the default. B. The Tax Foreclosure Matter. In late August 2023, Landmark learned that its Easement and Lease Agreement had not been recorded. It immediately contacted Simcha about this omission and to get the document recorded but was unable to reach Simcha or locate the original Contract. Within a few days, Landmark also learned of the existence of a pending tax foreclosure action filed in this Court on April 3, 2023 by Daniel R. Yemma, as Treasurer of Mahoning County, Ohio (“Treasurer”), and assigned Case No. 2023CV00589 (“Tax Foreclosure”). Landmark immediately filed the Affidavit on Facts Related to Title (Exhibit 1) and moved to intervene in the Tax Foreclosure matter, which was granted by the Court on September 15, 2023. ? See Ex. 2 at Exhibit D. 5 See Rooftop Lease with Option, Exhibit D to Easement and Lease Agreement (Ex. 2). esses 2049508 fe TRO inetRa 2024 CV 00958 In connection with its efforts to intervene in this matter, Landmark also discovered that the Property had been condemned by the City of Youngstown (“City”) and was in danger of being demolished. Landmark contacted the City Law Department and obtained documents concerning the multiple code violations that had been cited against the Property over a period of several years. Landmark notified Simcha of its multiple breaches of the Contract by not only failing to pay the taxes when due but also failing to maintain the Property in habitable condition. Initially, Landmark was advised by Simcha’s counsel (in the Tax Foreclosure matter) that Simcha planned on paying the taxes on or before September 15, 2023, the date a hearing was scheduled on the Treasurer’s dispositive motions. In the meantime, Landmark again contacted the City to see if it could redeem the Property (by paying the delinquent taxes and related fees and costs) in the event Simcha did not. On September 14, 2023, the City advised Landmark that it would not allow the Property to be redeemed without the property code violations also being corrected. The City also advised Landmark that Simcha had also contacted the City about redeeming the Property and would be moving the Court to brief the redemption issue. On September 15, 2023, undersigned counsel appeared at Court on Landmark’s behalf. As expected, Simcha requested to brief the tax redemption issue and Landmark advised the Court that it also wanted to brief the redemption issue since it could pay the taxes but could not demonstrate compliance with building codes due to its non-possessory interests in the Property. With all present parties agreeing to brief the redemption issue, a briefing schedule was set and a hearing and ruling on the Treasurer’s dispositive motions was postponed. Between September 15 and October 27, 2023, Landmark tried to work with Simcha to jointly submit a brief regarding redemption and to resolve the issue and avoid a foreclosure, esses 2049508 fe TRO inetRa 2024 CV 00958 without success. On October 12, 2023, Landmark issued a formal Notice of Default,’ along with a demand to immediately cure such defaults by paying the past-due taxes and repairing the Property to remove the code violations. In the interim, Landmark needed to remove certain decommissioned equipment from the Property. However, due to the fence erected by and condemnation notices posted by the City, Landmark was unable to use its easement rights to accomplish this, but rather had to contact the City and arrange with it to obtain access to the Property along with approvals to perform the necessary operation resulting in delays and causing harm to the contractual relationship between Landmark and its telecommunications customers. On October 30, 2023, with still no word from Simcha regarding its intentions to redeem the Property, brief the issue, or otherwise cure its multiple defaults of the Agreement, Landmark filed its own Motion to Redeem? requesting that it be permitted to redeem the delinquent taxes to prevent a decree of foreclosure and impairment of its property rights, but be excused from complying with the requirement in R.C. 5721.25 that it demonstrate compliance with all applicable building, health, and safety codes. After several delays and requested extension, Simcha filed its own Motion to Redeem on December 4, 2023.° In it, Simcha argued simply that the Court should conduct a hearing to determine the amount necessary to redeem the Property and that once the amount was “determined” the matter be stayed for 90 days once Simcha tendered said amount to allow Simcha to “assess whether or not the property is in compliance with [the City property code] and if not remedy the same thereby redeeming the property.” Unsurprisingly, the Treasurer opposed both motions and the Court agreed with the Treasurer and denied both motions. Thereafter, the Treasurer filed an amended dispositive motion, 4 A copy of both the Notice of Default and proof of delivery are attached hereto at Exhibit 3. 5 A copy of Landmark’s Motion to Redeem (without exhibits) is attached hereto as Exhibit 4. © Simcha’s Motion to Redeem is attached hereto as Exhibit 5. esses 2049508 fe TRO inetRa 2024 CV 00958 to which Landmark — but not Simcha — responded to oppose. Again, unsurprisingly, with the Property owner not even opposing summary judgment against it, the Court ruled in the Treasurer’s favor, foreclosing the Treasurer’s tax lien, and ordered that the Property be sold, subject only to all property interests recorded prior to the date the Treasurer’s Lis Pendens was filed — which notably did not include Landmark’s interests, which had not been recorded in 2017 when such interest was first conveyed. Because the decree of foreclosure makes no provision for Landmark’s interest due to Simcha’s failure to record the Agreement, upon a sale of the Property, Landmark will be stripped of its valuable property interests. Moreover, despite having requested a period of “90 days” which to assess the Property’s condition, during the 150 days since Simcha requested that extension, Simcha apparently has done nothing to rectify the numerous property code violations which prevented Landmark from redeeming the Property to protect its own interests. Thus, the Property still stands to be demolished and/or sold with nothing that Landmark can do on its own to prevent that. Accordingly, Plaintiff Landmark respectfully requests that this Court issue a Temporary Restraining Order to require Defendant Simcha immediately (1) make all necessary repairs to correct the numerous property code violations to prevent the building thereon from being demolished; and (2) pay all delinquent property taxes so that the Property can be redeemed prior to a sale of foreclosure. Il. LAW AND ARGUMENT This is predominantly a breach of contract action in which Landmark acquired from Simcha an easement on Property for a period of 99 years, subject to conditions not applicable herein. Landmark has fully performed all of its obligations under the Agreement, but Simcha has not. Specifically, Simcha has failed to maintain the Property in a “good and tenantable condition” esses 2049508 fe TRO inetRa 2024 CV 00958 and has failed to pay all property taxes when due, as required under the Leases assigned to Landmark. Because of Simcha’s defaults, Landmark has already suffered damages and is in imminent danger of losing its property rights, for which injunctive relief is appropriate. While a breach of a contract may give rise to monetary damages, an action for injunctive relief and requiring that the contract be specifically performed into the future is proper. Sunday Creek Coal Col. v. Big Bailey Coal Co., 26 Ohio N.P.(N.S.) 117, 1922 WL 1790 (Franklin C.P. 1922). This is particularly true when, as in this matter, fundamental property rights are at issue and cannot be “adequately guarded, protected, and enforced” except in an action at equity. /d. at 132; see also In re Morris, 260 F.3d 654, 667 (6th Cir.2001) (“Ohio follows the traditional rule of the common law that regards contracts for the conveyance of real property as falling within the jurisdiction of courts of equity because of the inherent inadequacy of any legal remedy.”). As the Fourth District recognized in Gleason v. Gleason, “[{W]here land is the subject matter of the agreement, the jurisdiction of equity to grant specific performance does not depend upon the existence of special facts showing the inadequacy of a legal remedy in the particular case.” 64 Ohio App.3d 667, 672, 582 N.E.2d 657, 661 (4th Dist.1991) quoting 71 American Jurisprudence 2d (1973) 144, Specific Performance, Section 112. When seeking equitable relief regarding an interest in land, a party may obtain injunctive relief to compel specific performance. See Nelson v. Suburban Nursing & Mobile Homes, Inc., 2nd Dist. Montgomery No. 13773, 1993 WL 334373. Rule 65 allows a court to enter a temporary restraining order, either with or without written or oral notice, if it “clearly appears from specific facts shown by affidavit or the verified complaint that immediate and irreparable injury, loss or damage will result before the adverse party. . . can be heard in opposition.” Civ.R. 65(A)(1). Upon certification by counsel for the moving party that either efforts have been made to notify esses 2049508 fe TRO inetRa 2024 CV 00958 the opposing party or should not be required, the Court may enter a temporary restraining order for a period of up to fourteen (14) days, during which a hearing on a request for preliminary injunction may be held. Civ.R. 65(A). When considering whether to issue a preliminary injunction under Ohio law, this Court considers and balances the following four factors: 1 whether Plaintiffs have a substantial likelihood or probability of success on the merits; whether Plaintiffs will suffer irreparable injury if the relief is not granted; whether the preliminary injunction would unjustifiably harm third parties; whether the public interest would be served by issuing the preliminary injunction. Aids Taskforce of Greater Cleveland v. Ohio Dep't of Health, 8th Dist. No. 105971, 2018-Ohio- 2727, 422 citing Kyrkos v. Superior Beverage Group, Ltd., 8th Dist. Cuyahoga No. 99444, 2013- Ohio-4597, 413. No single factor is dispositive but rather must be weighed with the “flexibility which traditionally has characterized the law of equity’.” Cleveland vy. Cleveland Elec. Illum. Co., 115 Ohio App.3d 1, 14, 684 N.E.2d 343 (8th Dist.1996) quoting Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (C.A.6, 1982). In this case, each of the factors weighs heavily in Landmark’s favor and injunctive relief is appropriate and should be granted. A. Landmark has a substantial likelihood of success on the merits. With the summary judgment having already been entered in the Tax Foreclosure matter in which Simcha was an active participant, Simcha already has been conclusively found to have failed to pay property taxes when due and failed to maintain the Property. As the Agreement makes clear, both of those acts were positive covenants Simcha undertook under the Leases which Simcha reserved to itself to perform when such Leases were assigned to Simcha. Accordingly, Landmark esses 2049508 fe TRO inetRa 2024 CV 00958 has a substantial likelihood of prevailing on its breach of contract claims that Simcha has breached the Agreement by not paying property taxes when due and failing to maintain the Property to such an extent that the Property has been condemned and is subject to demolition by the City. This factor weighs in Landmark’s favor and supports injunctive relief. B. Landmark will suffer irreparable injury if the relief is not granted. Even though this matter is, by way of nature, a breach of contract action, injunctive relief is an additional appropriate remedy. It has long been the law in Ohio that a breach of a contract involving an interest in real property may entitle the nonbreaching party to specifically enforce the terms of such contract even though damages may be awarded for past breaches. Gleason v. Gleason, 64 Ohio App.3d 667, 672-73, 582 N.E.2d 657 (4th Dist. 1991); see also Ayres v. Cook, 140 Ohio St. 281, 43 N.E.2d 287, 291 (Ohio 1942) (“{A]n action at law does not ordinarily afford an adequate remedy for refusal to convey real estate in accordance with a valid agreement.”), overruled on other grounds by Sherman y. Johnson, 159 Ohio St. 209, 112 N.E.2d 326, 332 (Ohio 1953). In this case, while Landmark has already suffered harm for which some damages may be quantifiable, losing its interest in the Property would be irreparable. This factor also supports injunctive relief being granted in Landmark’s favor. Cc. The preliminary injunction would not unjustifiably harm third parties. While the Agreement herein is directly between Landmark and Simcha, others have a real and definite interest in the existence of such contract. Specifically, Landmark presently has tenants on the Property who stand to lose their telecommunications equipment and ability to transmit cellular signals in the event that the Property is demolished or collapses on its own due to Simcha’s lack of maintenance and repair. Moreover, others, who have no present contract with either of the parties herein, such as the cellular signal customers of Landmark’s tenants, will likewise suffer harm if the telecommunications equipment is removed or damaged as a result of Simcha’s lack of esses 2049508 fe TRO inetRa 2024 CV 00958 maintenance. Granting injunctive relief by requiring Simcha to perform the contract by paying the delinquent taxes and repairing the building, will prevent unjustifiable harm to third parties. Thus, injunctive relief in Landmark’s favor is appropriate. D. The public interest would be served by issuing the preliminary injunction. As set forth above, the Property is home to various telecommunications arrays for several cellular telephone service providers. If the Property is not brought up to code, the equipment risks being damaged either through the demolition of the building by the City or the unaided collapse of the building itself through Simcha’s neglect in not providing maintenance to the Property. Requiring Simcha to repair the building and bring the Property up to code with serve a vital public interest in maintaining cellular telephone services across the region. In addition, the building on the Property was built in 1928 and is a well-loved building in the community. Requiring Simcha to repair and restore this former beauty not only would prevent the loss of cellular communication services but also benefit the public interest by removing a blighted building and restoring part of the City’s history. Thus, granting injunctive relief in Landmark’s favor would not only benefit Landmark, but the surrounding population and the City itself. Til. CONCLUSION. WHEREFORE, for all of the foregoing reasons, Plaintiff, Landmark Infrastructure Operating Company LLC, respectfully requests that it be granted a temporary restraining order and preliminary and permanent injunctive relief by requiring Defendant Simcha Vashulem, LLC, to specifically perform its obligations under the Agreement with Landmark by making all necessary repairs to the Property to correct all code violations and paying all delinquent taxes to prevent further and irreparable harm to Plaintiff and others in this community. esses 2049508 fe TRO inetRa 10 2024 CV 00958 Respectfully submitted: /s/ Amelia J. Leonard Amelia J. Leonard (0088875) SEELEY, SAVIDGE, EBERT & GOURASH Co., L.P.A. 26600 Detroit Road, Suite 300 Westlake, Ohio 44145 (216) 566-8200 | (216) 566-0213 (fax) aleonard@sseg-law.com Counsel for Plaintiff; Landmark Infrastructure Operating Company LLC CERTIFICATE OF SERVICE I hereby certify that on May 3, 2024, this document was eFiled via the Court's eFile system: A copy is also being sent via FedEx Overnight to the following: Simcha Vashulem, LLC 26 S. 10th St. Brooklyn, NY 11249 Courtesy copies are also being sent via email to: James E. Lanzo Simcha Vashulem, LLC 4126 Youngstown Poland Rd c/o Jacob Wieder Youngstown, OH 44514 office @ymwmanagement.com lanzolawoffice@gmail.con Counsel for Simcha Vashulem, LLC in Mahoning Co. C.P. Case No. 2023CVO00589 /s/ Amelia J. Leonard Counsel for Plaintiff; Landmark Infrastructure Operating Company LLC esses 2049508 fe TRO inetRa 11 2024 CV 00958 SL UTSE MEN | PRUMER EOL a Tsetnos O2S000 17174 mise for Record in HAHOHINE COUNTY, OHIO ‘HH PALERMO, OER 12355 PH 1p 76.00 OF ob 6559 Pa, iia AFFIDAVIT ON FACTS RELATING TO TITLE (O.R-C. § $301,252) STATE OF CALIFORNIA 2 5S. COUNTY OF LOS ANGELES } The undersigned, Daniel Parsons (herein called “Affiant")}, being frst duly sworn ander oath, comes forth ta slite the following as truthfully as he verily believes 1 Affiant states that he is the COQ and an authorized representative for Landmark Infrastructure Operating © ompany LLC, a Delaware limited liability company duly registered in the State of Ohio as a foreign limited liability company (herein called Grantee"), 2. Affiant is in possession of a copy of a certain Easement and Assignment of Lease Agreement entered inio on September 8, 2617, between Simcha Vashulem LLC, an Ohio limited lability company (“Grantor”) and Grantee with respect to the grant to Grantee of an exclusive easement for telecommunications purposes (“Telecom Easement”), a non-exclusive access easement if, to, under, and over the property containing the Telecom Casement (“Access Easement’), and an assignment of telocommunications lease(s) or license(s) pertaining to the Telecom Easement pursuant to one or more lease agreements between Grantor, as successor in interest to TLP Properties LLC and/or Vinoy Sood (“Assignment"), as more fully set forth in the Easement & Assignment of Lease attached hereto as Exhibit { 3.3 Affiant further states that Grantor is presently in possession of the Premises to which this Easement and Assignment of Lease Agreement pertains, consisting of real property located at 291 Park Ave., Youngstown, Mahoning County, Ohio identified on-the records therein as PPN $3-005-0-288.00 as of the date hereof and that Grantee's easement rights are current and have not lapsed A. Affiant further states that this Affidavit on Facts Relating to Tide is being filed to memorialize ihe valid and presently existing but unrecorded Easement and Assignment of Lease Agreement. 5 Affiant further states that the attached Easement and. Assignment of Lease Agreement is a true and accurate copy of the original docurnent of same name which was, but is no longer, in possession of Landmark Infrastructure Operating Company, LLC and could not be located despite diligent efforts to locate same, “Affiant further sayeth naught.” Date: _ Alea mi 28 we Ve re ii Daniel Parsons BEFORE ME, a Notary Public in and for said County and State, personally appeared Daniel Parsons, who acknowledged that he did sign the foregoing instrument and thal the same is his free act and deed, IN. TESTIMONY WHEREOE, paive hereunto set my hand and official seal this _.. day of September 2023. wi Pete dee Octane d- cnn neo se Notary Public This astrument Prepared By: Ametia J. Leonard (0088875) SEELEY SAVIDGE EBERT & GOURASH 26600 Detroit Rd., Suite 300 Westlake, OH 44145 216-566-8; “Pinaceae ae EXHIBIT 2024 CV 00958 1 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Los Angeles Subscribed and sworn to (or affirmed) before me on this 7th day of September , 2023 , by Daniel R. Parsons Sh proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me. (Seal) Signature Ay L one 2024 CV 00958 EASEMENT AND ASSIGNMENT OF LEASE AGREEMENT This Easement and Assignment of Lease Agreement (this “Agreement™) dated September 8, 2017 (the “Effective Date”) is by and between SIMCHA VASHULEM LLC, AN OHIO LIMITED LIABILITY COMPANY (“Grantor”), and LANDMARK INFRASTRUCTURE OPERATING COMPANY LLC, a Delaware limited liability company (“Grantee”); and WHEREAS Grantor owns certain real property located at 291 Park Ave, in the City of Youngstown, County of Mahoning, State of Ohio (“Property”); and more particularly described in ExhibitA attached hereto; and WHEREAS Grantor intends to grant to Grantee an exclusive easement (the “Teleco Easement’) in, to, under and over a certain portion of the Property described in Exhibit B attached hereto (the “Telecom Easement Area”) for telecornmunications purposes, and a non-exclusive easement (the “Access Easement”) in, to, under and over certain portions of the Property described in Exhibi attached hereto (the “Access Easement Area”) for ingress, egress, maintenance and utility service for and to the Telecom Easement (the Telecom Easement and the Access Easement may be collectively referred to herein as the “Easement”): and WHEREAS Grantor intends to sell, assign, set over, convey and transfer the existing telecormmunications lease(s) or license(s) (“Lease(s}") more particularly described in ExhibitmED to Grantee: and WHEREAS Grantor intends to allow Grantee to use the Easement in order that Grantee may tease space to Tenants in the telecommunications business; and NOW THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follaws: 1 GRANT OF EASEMENT, Grantor hereby grants to Grantee an exclusive easement over the Telecom Easement Area for the purpose of leasing space on the Property to telecommunications tenant(s) and uses associated with the exercise rights of telecommmunications tenants under such leases. 2. TERM, Commencing on September 8, 2017 (the “Commencement Date”), the Term of this Agreement shail be 99 years. Grantee shall be solely responsible for the payment of any taxes, fees or similar closing costs now or hereafter arising relative to the recording of this Agreement, or any documents associated herewith. 3. TERMINATION, Grantor may not terminate this Agreement; provided however, that in the event that Grantee voluntarily ceases to use the Easement for a continuous period of five (5) years, the Easement shall be deemed abandoned and this Agreement shall automatically terminate. 2024 CV 00958 4. ASSIGNMENT OF LEASE(S). As part of the consideration provided for this Agreement, Grantor hereby assigns and conveys all of its right, title and interest in and to the Lease(s), more particularly described in Exhibit D, Subject to the terms of the Lease(s), Grantor shall retain and continue fo faithfully perform and discharge any and all of Grantor’s obligations as lessor under the Lease(s) and Grantee assumes no obligations thereunder, except where Grantor is unable to perform and discharge any or all of Grantor's obligations due to force majeure, or an action or inaction of Grantee, or Grantee's agents, employees, contractors, licensees, servants, invitees or visitors 5.> NON-EXCLUSIVE ACCESS EASEMENT, As part of the consideration for this Agreement, Grantor hereby grants to Grantee the Access Easement in, to, under and across certain areas of the Property, and at certain times, as selected by Grantor in Grantor’s sole discretion, solely to the extent necessaty to allow ingress and egress, operation, maintenance of and utility service to the Telecom Easement Area, Grantor may re-route the Access Easement at any time, at Grantor's sole discretion. Notwithstanding anything to the contrary set forth herein, the Access Easement herein provided shall at all times be continuous, uninterrupted and adequate for Grantee's purposes contemplated herein. 6. REPRESENTATIONS AND COVENANTS OF GRANTOR. Grantor represents and warrants to Grantee, as of the date hereof, that: a. This person(s) signing this Agreement and any other documents on behalf of Grantor is duly authorized to do so and by execution hereof, it is the intent of Grantor to create a legal, valid and binding obligation, enforceable against Grantorin accordance with their terms. b. The execution, delivery and performance by Grantor of this Agreement does not and will not violate or conflict with any provision of Grantor's organizational documents (if Grantor is an organization) or of any agreement to which Grantor is a party including, without limitation, permits, mortgages and deeds of trust, or by which Grantor or the Property is bound and to the best of Grantor's knowledge, will not violate or conflict with any law, rule, regulation, judgment, order or decree to which Grantor is subject. «. There is no pending or threatened action, judgment, order decree or proceeding (including any bankruptcy, insolvency. eminent domain, zoning or other land use regulation actions) that, if determined against Grantor, would adversely affect Grantor's ability to grant the Easement or such other documents or to perform its obligations hereunder or thereunder, or limit Grantee’s ability to use the Easement as contemplated herein, Grantor has received no notice from anv governmental or quasi-governmental authority either that the Property or the use thereof violates any statutes, ordinances, orders or regulations affecting any portion of the Property. d. Grantor owns one hundred percent (100%) of the fee title to the Property and the lessor’s interest in and to the Lease(s). e. Grantor has not previously deeded, granted, assigned, mortgaged, pledged. hypothecated, alienated or otherwise transferred any of its aght, ville and interest in and (o the Lease(s), or any portion of the Property the Easement occupies, except as expressly disclosed to Grantee in writing, 2024 CV 00958 or as may be of reeard. Except for the Lease(s), Grantor has not executed or otherwise entered into any leases, lenancies, license or concession agreements, occupancy agreements or other agreements with respect to rights that would prevent Grantee’s, or Grantee's tenants, possession or vecupaney of exy portion of the Easement or use of the Property pursuant to this Agreement ar the Lease(s}. f Grantor shall not allow or permit a Grantor's breach or default wo occur under the Leases and Grantor shall comply with all appt able laws which may affect the Property. 2 Intentionally Omitted. h Grantor shall nol, nor shal) Grantor permit its lessees, licensees, employe invitees or agents to unreasonably use any portion of the Property, or the Easement ina way whi hy interferes with the operations of tenants under the Lease(s), 0 y other of Grantee’s future lessees or licensees, or to interfere with the Access Basement, Sach interference shall be deemed a matenal breach by Grantor, 7. RELOCATIO Subject to the terms of the Leases, Grantee agrees, at no co: to Granted, to relocate its equipment to a similar locati vadequate for Grantee's purposes contemplated herein, within the Property, for the purpose () reducing or eliminating interference, or (ii) permitting Grantar to perform maintenance, repair, construction, Property enhancements, or similar work on the Prop ¥ 8. SUCCESSORS AND ASSIGNS, This Agreement shal! he binding upon and inure to the benetit of the parties hereto and the successors and assigns of the parties to this Agreement, This Agreement shall nin with the land upon which the Easement is located, and Grantor shall, tn any and al) deeds or other documents related to the sale, conveyance, sizninent, mortgage. pledge, or other encumbrance or transfer of the Property, expressly provide that the Property is subject ta all nghts, liabihties and obligations under this Agreement (including without Umitstion, with respect to the Easement). Grantor hereby expressly acknowledges and agrees that Grantee may from lime te time sell, convey, assign, mortgage. pledge, encumber, hypothecate, securitize or otherwise transi er some oral! of Grantee’s right. nde and interest in and to this Agreement, the Fasement, the Telecom Easement Area and/or the Access Easement Arce without notice to or consent of Grantor. a. ENVIRONMENTAL REPRESENTATIONS. &. Grantor Environmental Representation. Grantor represents that it has no knowledge of any substance, chemical or waste (collectiv ly “Hazardous Substance”) on the Property that is identified a8 hazardous, toxic or dangerous im any applicable federal, state or local Jaw or regulation. Grantor shall not introduce of use (or permit the use of} any Hazardous Substance on the Property in violation of any applicable federal, state or local environmental laws. Grantor shall be responsible for (and shell promptly conduct any investigation and remediation as regaired by any applicable environmental laws) all spills or other reles s of any Hazardous Substance not eaused solely by Grantee, that have occurred or which may occur on the Property. 2024 CV 00958 bh, Grantee Environmental Representations. Grantee shall ret introduce or use any Hazardous Substance on the Property or the Basement in violation of any applicable federal, state or local environmental laws. Notwithstanding the foregoing, Grante Ht not be respon: e for any Hazardous Substances arising or present on or before the tive Date. Liability of Grantee for any claims with respect to any Hazardous Substances at the Property or the B sement shall include contamination which is shown by. clear evidence to have been caused by a release wf a Hazardous Substance by Grantee alter the Effective Date &, Mutual Indenmification. Bach party agrees to defend, indemnify, and hold harmless the other from and against any and all administrative and judicial sections and niin claims, causes of action, demands and liabdity including, bot not limited to damages, costs, expenses. essments, penalties, fin cleanup, remedial, removal or restoration work required by any governmental authority, losses, judgments and reasonable attorneys’ fees that the indemmified party may suffer or incur duc to the « tence or discovery of any Hazardous Substance on the Property caused by the other party. This mdemnification shall also apply to the migration of any Hazardous Substance to other properties, and the release of any Hazardous Substance into the environment that relate to © ise from the indemmiter’s setivities on the Prope ee Grantor agrees to delend, indemni protect and hold Grantee harmless from claims resulting from actions on the ty nol caused by Grantee prior to, and during the Term of, this Agreement. This indemnification shall survive the termination or expiration of this Agr ent # 10, NOTIC All notices, requests, demands and other communica ong hereunder shall be delivered by Certified Mail Return Receipt Requested, and/or a nationally recognized Crvernight courier, Notice shall be deemed accepted upon proof of delivery, Notices shall be delivered As to Grantor’ Sab St Brook’ NY 1249 Asto Grantee: c/o Landmark Dividend LL P.O. Box 3429 2441 Rosecrans Ave,, Suite 2100 E) Segundo, CA 90245 Alta: Legal Dept it DEFAULT. lt shall be an “Event of Default if either Grantor or Grantee fails to observe or pertonm any of the terms, conditions or its reapective obligations set forth in this Agreement! Upon receiving written notice of such a default or breach of this Agreement, the defaulting party shall have sixty (60) days to cure such default. Notwithstanding anything herein ta the contrary, if the required eure of the noticed default cannot reasonably be completed by either party within such 60-day period, such party's failure to perform shall not constitue an Event of Default so long ag such party undertakes to cure the failure promptly and diligently and continuously pursues the cure thereof to completion. In the event that the defaulting party fa to cure such default within the cure period, the non-defaulting party shall be entitled to exercise any rights permitted by applicable law, 2024 CV 00958 12 AGREEMENT FULLY PERFORMED. Notwithstanding anything herein to the contrary, this Agreement is deemed to be fully performed by Grantee as of the Commencement Date. Inno event shall this Agreement be deemed an executory contract for purposes of the United States Bankruptcy Code, as amended (the “Code”), and this Agreement may not be rejected pursuant to Section 365 of the Code. 13. GOVERNING LAW: CERTAIN WAIVERS. (a) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE JN WHICH THE PROPERTY IS LOCATED, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF, (b) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ANY RIGHT TO A JURY TRIAL IN ANY ACTION OR PROCEEDING TO ENFORCE OR INTERPRET THIS AGREEMENT. (c) EACH PARTY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE APPLICABLE UNITED STATES DISTRICT COURT FOR THE DISTRICT THE PROPERTY 1S LOCATED IN, AND EACH PARTY WAIVES ANY OBJECTION WHICH IT MAY HAVE TO THE LAYING OF VENUE IN SUCH COURT, WHETHER ON THE BASIS OF INCONVENIENT FORUM OR OTHERWISE. 2024 CV 00958 IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have caused this Agreement to be duly executed as of the date first written above. GRANTOR: SIMCHA VASHULEM LLC, an Ohio limited liability company Name: JosephGottchrer Title: Manage Date: 3) 24/ 20rd s STATE OF cht Wecng f ne i) ss. COUNTY OF SeateSmee We B9 20177, before a Notary Public in and for said County and me, singe State, personally appeared _ fb SH #3 ITE AE . who proved to me on the basis of satisfactory evidence toto be the person(s) ‘whose name(s) ‘is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of that the foregoing paragraph is true and correct. clSo WITNESS my hand and o! ficial S My Commission Expi By i SOLON seouary Pe ON ITZKOMITS cuit OuTA7O54a) ermsion ‘ExoHes a itn itnennscneroniimmn, af New fos JULY 30, 2015 [SEAL] i“ 2024 CV 00958 IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have caused this Agreement to be duly executed as of the date first written above GRANTEE: LANDMARK INFRASTRUCTURE OPERATING COMPANY LLC, a Delaware limited liability company “ By ee e Nosy” USE Ce Title uthorize 4] Date oh ieee ineinatitecsicin i netic ome sitions tei itr riinissiinon A notary public or aiher officer completing this certificate verifies only the identity of the individual who signed the \ « document to which this certificate is susched, and not the truthfulness, accuracy. or validity of that document, i ini Sati i sith State of California County of Los Angeles be oe, On crime before The, Kom att Th. ea BX judlele BW (here insert name and title of officer), personally appeared rai. , who proved to me on the basis of satisfactory evidence to be the person(s) whose name (s) is/are subscribed to the within instrument and acknowledged to me that he/she’they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument T certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and official seal. KAMILAH EDWARDS % Commission # 2132073 t= Notary Public « California Los Angeles County z Signature ernie (Seal) ySonm, Expires Get 01 29, 2018Ue 2024 CV 00958 ITA LEGAL DESCRIPTION OF THE PROPERTY SITUATED IN THE CITY OF YOUNGSTOWN, COUNTY OF MAHONING, STATE OF OHIO: PARENT PARCEL: KNOWN AS BEING YOUNGSTOWN CITY LOT NUMBER 4877 ACCORDING TO THE LATEST ENUMERATION OF LOTS IN SAID CITY. TAX LD. NUM